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10 Award No 1536 2004 PDF
10 Award No 1536 2004 PDF
CASE NO : 15/4-548/01
BETWEEN
AND
1
Reference :
AWARD
JOINDER OF PARTY
BACKGROUND
3. The factual matrix that form the background to this case may be
shortly stated.
2
(‘the Company’) which later came to be called Konsortium Logistik
Berhad. Her letter of appointment is seen at pages 1 and 2 of AB1, a
bundle of documents agreed to mutually by the parties. Her place of
employment was Subang Jaya in Selangor Darul Ehsan. By a letter
dated 17.7.1998, exhibited at page 3 of AB1, the Claimant was
transferred to the Bulk Petroleum Distribution Division (‘BPDD’) of the
Company. BPDD is situated in Port Klang, Selangor Darul Ehsan. In
response to a written query by the Claimant, the Company informed her
by letter dated 24.7.1998, found at page 9 of AB1, that upon transfer her
designation would be ‘Executive’ and her job function would be to assist
the department’s Manager on all administrative and personnel matters.
To this letter her job description was enclosed. The Claimant reported on
transfer at BPDD on 27.7.1998. The department’s Manager was Captain
Hassan Ariffin (‘COW2’). Thereafter the Claimant applied to the
Company for the vacant position of Executive (Government) in MSASB
situated in Subang Jaya. In this application she failed. The relevant
application and reply thereto are exhibited at pages 13 and 14 of AB1.
Next, by a letter dated 1.9.1998 addressed to COW2, the Claimant served
three months notice of her intention to resign from employment. And
this resignation was accepted by the Company by letter dated 3.10.1998
which letter also fixed the Claimant’s last date of service as 14.11.1998.
At pages 15 and 16 of AB1 are found these two letters. Then, following a
discussion with COW2, the Claimant wrote a letter bearing the caption
‘Retraction of Resignation’, carrying the date 30.10.1998, directed to
COW2. To this letter the Company replied, disagreeing to the Claimant
retracting her resignation and declaring the Claimant’s last date of
employment as 14.11.1998. These letters have been included in AB1 at
pages 17 and 19. Finally, the Claimant by a handwritten letter dated
14.11.1998, exhibited as CLE1(a), sent by facsimile on that same day at
12.08 after noon, claimed constructive dismissal by the Company.
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5. Other correspondences there were. These form part of AB1.
Referred to them, I have yet to. Refer to them I will, as my discussion
progresses and the need arises.
CONSTRUCTIVE DISMISSAL
The Law
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it would be a dismissal if an employer is guilty of a breach
which goes to the root of the contract or if he has evinced an
intention no longer to be bound by it. In such situations, the
employee is entitled to regard the contract as terminated and
himself as dismissed. ”
5
deemed to have waived the breach and agreed to vary
the contract....
And what Salleh Abas LP said was reaffirmed by Gopal Sri Ram JCA at
page 2283 of Quah Swee Khoon v. Sime Darby Berhad, (2000) 2 AMR
2265 when his Lordship said:
6
Evidential Burden
11. I next broach the subject of evidential burden. The law is old but
firm. Cases abound that the burden lies upon the workman to prove all
the necessary ingredients of constructive dismissal. This is no different
from the position that when in dispute, the burden is upon the workman
to prove that he had been dismissed. Azmel J reconfirmed the law when
in Chua Yeow Cher v. Tel Dynamic Sdn. Bhd, (2000) 1 MLJ 168 his
Lordship said :
13. It would be an appropriate starting point to set out the letter with
which the Claimant claimed constructive dismissal (‘the constructive
dismissal notice’).
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“ 14th November 1998
By Fax:
Dear Sir,
Yours sincerely
signed
............................
AZIAH BT. ANIS
14. That the constructive dismissal notice is not included in AB1 but is
found in a disputed bundle of documents worries me not for the
Company not only failed to challenge the Claimant on its existence but
had in its written submission at paragraph 4.16, in substance admitted
to this letter.
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15. Goon Kwee Phoy v. J & P Coats (M) Bhd. (1981) 2 MLJ 129 is
binding authority for the proposition that the Court is restricted in its
inquiry into the veracity of the reason chosen by an employer for the
dismissal. Raja Azlan Shah CJ (Malaya) (as HRH then was) speaking for
the Federal Court ruled at page 136:
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“ 11th November 1998.
Dear Sir,
Regards,
Signed
................................
(AZIAH BT. ANIS )
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18. The Claimant had in an earlier letter dated 30.10.1998 retracted
her resignation. This letter being relevant in this and other discussions
to follow is reproduced (‘the retraction letter’) below.
Dear Sir,
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as I personally feel this Division needs all the support
available at every level in these critical time.
Thank you.
Yours sincerely,
Signed
..................................
19. To this retraction letter the Company replied and this letter for
similar reasons is reproduced. (‘Company’s reply to the retraction
letter’) :
“ 10 November 1998
Dear Aziah
RETRACTION OF RESIGNATION
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After due consideration we regret to inform you that we are
not able to agree to your request and your last day of service
will be 14th November 1998.
Signed
.........................................
FARID Z. HAMID
GROUP SENIOR VICE PRESIDENT –
ORGANISATIONAL DEVELOPMENT
20. And it is this Company’s reply to the retraction letter that led to
her letter of 11.11.1998. That the Company did not reply to the
Claimant’s letter under reference is a fact. And this failure by the
Company, the Claimant maintains in the constructive dismissal notice, is
the ground for her claiming dismissal. The notice carries no other
grounds. Did this failure on the part of the Company result in a breach
of a fundamental term of the Claimant’s contract of employment with the
Company? That question describes aptly the issue before me.
21. In answering this poser, I take cognisance of the fact that the
principle of constructive dismissal in Malaysia is based on the contract
test and not on the unreasonable conduct test. That this is so has been
firmly entrenched by a plethora of cases. Suffice it for me to quote
Mahadev Shankar JCA speaking at page 605 in the Court of Appeal
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decision of Anwar bin Abdul Rahim v. Bayer (M) Sdn. Bhd; (1998) 2
MLJ 599 :
And as to why this is so, Salleh Abas L.P. in Wong Chee Hong (supra)
explains:
22. Granted that the Company was unreasonable in not replying her
letter of 11.11.1998. But not in issue is the unreasonable conduct of the
employer. In issue is whether there has been a breach of a fundamental
term of her contract of employment, such breach being born of the
Company’s failure to reply the said letter. It is the Company’s
submission that this failure does not constitute a breach of any
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fundamental term of the Claimant’s contract of employment. With this
submission I have to agree.
23. To this is tied the view I had earlier expressed that the principle
enunciated in Goon Kwee Phoy (supra) should apply equally to a
workman who ceases employment and claims constructive dismissal.
This view behoves the Court to enquire whether the reasons given by the
workman for the action taken has or has not been made out. The proper
enquiry of the Court should be limited to the reasons advanced by the
workman and the Court should not go into any other reason not relied
on by the workman or find one for him. If the Court finds as a fact that
the reasons advanced by the workman have not been proved, then
perforce, the principle would lead to the inevitable conclusion that there
has been no dismissal of the workman. In this connection it cannot be
the law that the workman should necessarily express his reasons in
writing. What is essential is that the reason or reasons should have been
made known clearly and unequivocally to the employer around the time
the workman had resorted to his action of cessation of employment.
Equity too will demand this for unless the workman puts the employer to
notice of the breach complained of, the employer would not have had the
opportunity, if he chose to, to remedy the breach of contract.
24. I have carefully examined the evidence before me and save for the
reason extended by the Claimant in her constructive dismissal notice,
she had not made known to the employer clearly and unequivocally any
other reason for her action. And the reason the Claimant has advanced
relies on a flawed assumption for its correctness, namely the mistaken
assumption that the failure of the Company to give a reply to her letter of
11.11.1998 constituted a breach of a fundamental term of her
employment. The necessary corollary to this is that there was no
dismissal of the Claimant by the Company. And that is my finding.
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25. Though not required of me, for purposes of completeness I now
turn to examine the reasons proffered by the Claimant in her pleadings
and in her testimony in support of her claim of constructive dismissal.
These reasons she states in answer to question 72 in her witness
statement which in substance is in pari materia to her pleadings at
paragraph 20. Her reasons are :
16
the transfer being a demotion and in the circumstances this ground and
that relating to her being humiliated cannot stand.
27. Ex-facie there was indeed some difference in her job function. But
an employee should reasonably expect to see some changes to her job
content upon a transfer or re-designation. No two jobs can be alike.
That this difference was a bone of contention at the material time is not
evident from the Claimant’s response, in the form of a letter dated
25.7.98, exhibited at page 11 of AB1, on being made known of her job
description as Executive. In that letter though commenting on the
additional responsibilities that the job would entail, she made no protest
and instead sought guidance and training to enable her to carry out her
duties. In the upshot I find this ground too unsustainable.
29. On the transfer being actuated mala fide or being an unfair labour
practice or an act of victimisation against the Claimant, there lie no
cogent and tangible evidence before the Court. And in this I am in
consonance with Encik Ahmad Humaizi’s reference to Intra Marine (PK)
Sdn. Bhd. v. Thomas a/l Pappu, (1995) 1 ILR 654 where the learned
17
Chairman Yussof bin Ahmad (as Yang Arif then was) adopted the writing
of B.R. Ghaiye in his text Law and Procedure of Departmental
Enquiries (In Private and Public Sectors) at page 1461 :
18
“ Conversely where an employee treats himself as having
been constructively dismissed pursuant to a transfer order,
the only issue for determination of the Industrial Court is
whether the applicant was acting within the parameters of the
respondent’s contract of employment. In examining the
motives behind the transfer and concluding that the actions of
the company amounted to a punishment in the form of a
transfer and was a humiliation, the Industrial Court had
overstepped the boundaries curtailing its role in a constructive
dismissal situation arising from a transfer order. ”
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constructive dismissal. These conditions are cumulative and not in the
alternative and it is for the Claimant to satisfy the Court that they have
all been fulfilled.
One condition precedent is that the Claimant should not have delayed
too long in terminating the contract of employment, otherwise she will be
treated as having affirmed and adopted the breach. On this Encik
Ahmad Humaizi submits that if the Claimant’s case of constructive
dismissal is founded on her transfer to BPPD which occured on
27.7.1998, her reaction on 14.11.1998, after a delay of 3½ months,
amounts to waiver of the alleged breach. In support he relies on the case
of CCM Fertilizers v. Peter Shanta Arthur Sukumar, (2003) 3 ILR
944 where the learned Chairman held that a delay of 2½ months before
proceeding on constructive dismissal arising from a disputed transfer,
resulted in the workman waiving his right to do so.
To all this Encik Abdul Shukor replies that the Claimant acceded to the
transfer and reported at BPDD for she was under the impression that the
transfer order was lawful and she feared that refusal would lead to
disciplinary action against her; that the Claimant was confused; and that
she had written to the Company a letter dated 18.7.1998 seeking the
reason for her transfer which letter was never replied.
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32. With respect, I am unable to find in support of the Claimant. That
she reported for work at BPDD is not the issue. What is, is the fact that
she walked out of her employment 111 days after the transfer which she
complains constitutes the breach of contract. Is this period of 111 days
before which the Claimant reacted reasonable under the circumstances?
If it is, it will negative waiver. Otherwise she is deemed to have affirmed
and adopted the alleged breach. I am unable to accept the reason of
awaiting a reply to the Claimant’s letter of 18.7.1998 being a justifiable
cause for the delay. The Claimant’s conduct as revealed in the various
correspondences that she entered into, particularly her letter of
25.7.1998 earlier referred to, and the perceptions relayed therein is not
conduct that made a reply to her letter of 18.7.1998 crucial.
DIRECT DISMISSAL
35. My decision hitherto is that the Claimant was not dismissed by the
Company by way of constructive dismissal. I now turn to another glaring
series of events which appear to have escaped both learned counsels’
attention. These events when conjoined together lead the instant case in
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an entirely different direction to the extent of bringing about a role
reversal where dismissal is concerned. I now proceeded to consider this.
Claimant Resigns
To:
Capt. Hassan Ariffin
Manager
Bulk Petroleum Distribution Division
Port Klang.
Re: Resignation
Yours sincerely,
Signed
....................................
AZIAH BT. ANIS
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cc: Mr. Andy Goh – VP Finance
En. Farid Z. Hamid – SUP – Corp. Human Resource,
KPB. ”
That copy of the letter which was tendered as evidence, bears at the top a
received stamp from the Senior V.P. Group HR and at the bottom has a
note which reads “JA- Pls. check with Hassan when is her last day”. I
will refer to the import of this later in my discussion.
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indicated to me that my main grievance, namely
transportation, can be solved at his level. He indicated
that it is within his jurisdiction to approve compensation
for travelling by way of petrol/maintenance allowance.
In the alternative he also suggested that I apply for a
loan from the company for the purchase of a new car
and that he will strongly support my application. As my
grievance may be solved by the two alternatives, I was
willing to continue working for the Company.
65. Q: Can you tell the Court to whom you addressed the
letter to?
A: I addressed the letter retracting my resignation to my
immediate superior, Kpt Hassan Ariffin. ”
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COW2 under cross-examination stated:
39. The Claimant then wrote her retraction of resignation letter dated
30.10.1998 addressed to COW2 with copies, one of which she sent to
Farid Z. Hamid. This letter has been reproduced earlier in this Award.
40. To this letter of the Claimant, the Company through the hand of
Farid Z. Hamid responded with a letter dated 10.11.1998 which letter too
has been earlier reproduced.
25
Puzzled am I by the contents of this letter, particularly on that part
where the Claimant’s letter of 30.10.1998 is referred to as a request to
retract her resignation. Ex facie the Claimant’s retraction of resignation
letter read in the light of that which preceded between the Claimant and
COW2, leads me to determine that the said letter is not a request for
retraction of her resignation. The letter is in substance a confirmation of
her retraction of the resignation which retraction had earlier been agreed
to by the Company through COW2, her superior.
On this I turn to Riordan v. The War Office (1959) 3 All ER 552 where
Diplock J. spoke at page 557 :
26
And closer at home, in a case circulating the right of an employer to
withdraw a termination notice, Hasan J. in Kerisna a/l Govindasamy
lwn. Highlands & Lowlands, Ladang Bukit Selarong, (2003) 6 MLJ
739 referred with approval to a passage from Harris & Russle Ltd. v.
Slingsby (1973) 3 All ER 31 which being relevant to the instant issue
before me, is repeated :
And in the Industrial Court, learned Chairman, Tan Kim Siong speaking
in MST Industrial System Sdn. Bhd. v. Foo Chee Lek, (1993) 1 ILR
202 held :
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1. Once notice has been given by either the employer or
the employee, it can only be withdrawn with the
agreement of the other. (See Riordan v. War Office,
1959 3 All E.R. 552 and Bryan v. Wimpey 1968 3 ITR
28). ” (Emphasis added)
The principle that emerges from the aforesaid cases is that a workman
whose resignation has been accepted by his employer cannot thereafter
unilaterally revoke such resignation save by mutual consent with the
employer. Common sense demands this principle to be correct and with
this I go along.
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revocation. I further take notice of that note at the bottom of the
Company’s copy of the Claimant’s letter of resignation. I had earlier
referred to this note where the author had instructed a certain ‘JA’ to
check with ‘Hassan’, presumably COW2, on the Claimant’s last date of
employment. Following this, Farid Z. Hamid wrote to the Claimant
accepting the resignation and fixing her last date of employment. This
letter was copied to COW2. COW2 had therefore participated in and had
full knowledge of the Company’s decision vis-a-vis the Claimant’s
resignation. Notwithstanding, he had chosen to agree to the withdrawal
of the Claimant’s resignation.
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but one life at any given time. Once extinguished, it remains so and
cannot be extinguished again. For that to be done the contract will first
have to be rekindled into life by mutual consent between the workman
and the employer. The Claimant’s letter of constructive dismissal
produced no effect whatsoever on her contract of employment, already
torn asunder by the Company’s earlier letter.
Pleadings
46. Before departing from this finding, there is need for me to make
mention of the fact that I had in the course of arriving at my decision
directed my mind to the all important subject of pleadings. In this
connection I had hearken to the oft quoted passage of Eusoff Chin CJ in
R. Ramachandran v. Industrial Court of Malaysia & Anor, (1997) 1
CLJ 147 where his Lordship held that though the Industrial Court is
not bound by all the technicalities of a civil court by virtue of section 30
of the Act, pleadings cannot be ignored and treated as pedantry. I also
took heed of that part of the passage where his Lordship said that “the
Industrial Court must at all times keep itself alert to the issues and attend
to matters it is bound to consider.”.
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47. The facts pertaining to the retraction of the resignation by the
Claimant and the response to the same by the Company was pleaded by
both parties. The relevant correspondences were exhibited in a bundle of
documents agreed mutually by the parties. Related facts were not only
included in the Claimant’s and COW2’s witness statements but both of
them were also subject to cross-examination on the same. The object of
pleadings is to prevent surprises. I cannot for one moment think that
the Company can be said to have been taken by surprise because the
facts material to my decision had been laid bare for all to see through the
numerous media referred to. That either party did not recognize the legal
issues which surfaced as a result of these facts and failed to submit on
the same does not absolve the Court from doing what is incumbent upon
it to do. Upon me lies the duty to keep alert to possible issues that arise
and to attend to all matters that I am bound to consider. And in this
quest I take the position that material facts may be pleaded without the
need to plead the legal consequences that follow (see Gopal Sri Ram JCA
in Quah Swee Khoon v. Sime Darby Bhd., (2000) 2 AMR 2265).
48. I verily believe that I have not offended any rule of pleadings in
taking into consideration the relevant facts and arriving at my decision
that the Claimant was dismissed by the Company. And if I have, I take
confidence from that salutary charge of Gopal Sri Ram JCA found at
page 320 of Ng Kim Moi (P) & Ors v. Pentadbir Tanah Daerah,
Seremban, Negri Sembilan, (2004) 3 MLJ 301 :
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REMEDY
REINSTATEMENT
49. The Claimant has sought reinstatement in her former position both
in her pleadings and in her testimony. The Court not having found her
transfer to BPPD being wrong, will treat the former position referred to by
her as that position she held at BPPD at the time of her dismissal. The
Court is mindful of the nature of the work that was assigned to the
Claimant; that she holds a Diploma from the Mara Institute of
Technology; that she had worked with a subsidiary of the Company for a
period of 5 years; that her cessation of employment was carried out not
under circumstances that were tumultuous or disharmonious; that there
is no evidence before the Court that the position previously held by her
has been filled; and that she is now 46 years old, an awkward age, which
though it allows a substantial remaining working life, has the effect of
impeding her chances of securing employment with a new employer.
After weighing these considerations the Court finds it fit to reinstate the
Claimant in her former employment.
BACKWAGES
50. The Court had in the case of Ike Video Distributors Sdn. Bhd. v.
Chan Chee Bin (2004) 2 ILR 687 analysed in detail relevant factors and
had set out the principles by which the Court will be governed in the
award of remedies including backwages. The Court held that backwages
should be for the period between the date of dismissal and the date of
conclusion of hearing. From this sum the Court will scale down, if
appropriate, based on the circumstances of the case, under the three
heads of (a) gainful employment, (b) contributory conduct and (c) delay
factor. The arguments and rationale of the Court in having arrived at
32
this mode of computation is discussed in detail in Ike Video Distributor
Sdn. Bhd. (supra) and will not be repeated here.
52. The evidence before the Court is that the Claimant earned a salary
of RM2,700.00 per month at the time of her dismissal. And this becomes
the multiplicand.
SCALE DOWN
Gainful Employment
55. The Court had analysed the application of this principle in Ike
Video Distributor Sdn. Bhd. (supra) and will adhere to the same here.
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interregnum and for this reason no scaling down is effected under this
head.
Contributory Conduct
57. The Court finds the Claimant not to have contributed in any way
towards her dismissal and for this reason no scaling down is effected
under this head.
Delay Factor
59. In the instant case the Claimant was represented without absence
at every one of the mentions and hearing dates set by the Court. She
further complied with all directions on the filing of pleadings, documents
and witness statement. She therefore made no contribution towards
delay and the Court accordingly effects no scaling under this sub-head.
60. The Claimant’s appeal under section 20 of the Act was received by
the Minister of Human Resources on 17.11.1998. On 24.2.2001 the
Minister decided to exercise his discretion to refer the matter to the
Industrial Court and the matter was assigned to the Court on 11.6.2001
more than 2.4 years later. And on being assigned to the Court, hearing
34
of the matter was further delayed for the reason that the Court was
almost one year. There was therefore a delay of a total of 3.4 years under
this sub-head.
the backwages at the rate of 5% per year of delay. Scaling down under
ORDERS
BPPD with effect from 1st December 2004 on terms and conditions of
reporting for duty but not less than the terms and conditions of service
which applied to her at the time of her dismissal. Should the Claimant
fail to report for duty at BPPD on or before 15th December 2004, this
reinstatement order will lapse and she will thereafter lose this benefit of
reinstatement.
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63. The Court orders that the Company further pays the Claimant
through her solicitors, the sum of RM145,665.00 less statutory
deductions if any, not later than 45 days from the date of this Award.
(N. RAJASEGARAN)
CHAIRMAN
INDUSTRIAL COURT
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